TN 7 (09-14)

PR 06205.011 Florida

A. PR 14-161 Effect of Colorado Nunc Pro Tunc Divorce on the Marriage Duration Requirement

DATE: August 28, 2014

1. SYLLABUS

The NH’s permanent home was in Florida at the time of his death. Under Florida law, the validity of a marriage is determined by the law of the state in which the marriage was contracted. Here, we have no reason to question the validity of the Minnesota marriage. However, we must consider how Florida would view the Colorado divorce in order to determine the duration of marriage. Florida recognizes divorce judgments obtained in other states as required by the U.S. Constitution, which provides that a state must give full faith and credit to the judicial proceedings of another state. Thus, to determine the effective date of the dissolution, we must look to Colorado law. Here, the terms of the dissolution decree appear consistent with Colorado law.

Under Colorado law, courts are permitted to enter orders nunc pro tunc, “or now for then”; such orders “are normally for the purpose of correcting an omission from the court records and are deemed to have retroactive effect.” However, a review of Colorado case law shows that Colorado courts routinely enter dissolution decrees effective nunc pro tunc and this practice is accepted without comment by reviewing courts. The agency is not always required to honor state court orders. In this case, however, because the nunc pro tunc order is consistent with Colorado state law, and presents no other basis for questioning its terms or validity, the agency may honor it. The Claimant and NH were marriage on June 10, 1972. The effective date of Claimant’s divorce is May 24, 1982, therefore, Claimant and the NH were not married for 10 years as required by the Act for surviving divorced spouse benefits.

2. OPINION

Question Presented

You asked whether Claimant’s marriage to the number holder (NH) met the Social Security Act’s (Act) 10-year duration requirement for surviving divorced spouse benefits?

Short Answer

No. Under Colorado law, the effective date of the divorce was May 24, 1982. Since the marriage occurred on June 10, 1972, Claimant and the NH were not married for 10 years as required by the Act for surviving divorced spouse benefits.

Background

Claimant, Karen, married the NH, Byron, on June 10, 1972, in Minnesota. Claimant petitioned for dissolution of marriage and, on May 24, 1982, claimant and the NH appeared before a Colorado District Court having reached a settlement on all issues and asking the court to approve the settlement. On August 26, 1982, the Colorado district court entered a decree of dissolution of marriage “nunc pro tunc, May 24, 1982.” Before submitting the form of order to the court, the attorneys for both Claimant and the NH signed the document under the heading “APPROVED AS TO FORM.” The parties also submitted to the court a written Stipulation and Agreement asking the court to enter an order consistent with the events of May 24, 1982 “as approved by the court.”

The NH died December 7, 2013, domiciled in Florida. On February 4, 2014, Claimant filed for surviving divorced spouse benefits.

The agency denied Claimant’s application for failure to meet the marriage duration requirement. Claimant now seeks reconsideration. Her representative, attorney Douglas, submitted a letter on Claimant’s behalf dated May 13, 2014, in which he contends that Colorado courts would not strictly enforce the retroactive divorce decree but would instead apply equitable principles.

Discussion

In addition to other requirements not at issue here, an individual may be entitled to widow’s benefits if she is the surviving divorced wife of an individual who was fully insured. Social Security Act § 202(e)(1), 42 U.S.C. § 402(e)(1). The Act defines a surviving divorced wife to be “a woman divorced from an individual who has died, but only if she had been married to the individual for a period of 10 years immediately before the date the divorce became effective.” Social Security Act § 216(d)(2), 42 U.S.C. § 416(d)(2); 20 C.F.R. § 404.336.

The agency looks to law of the state where the number holder had a permanent home to determine a claimant’s marital relationship to the number holder. Social Security Act § 216(h)(1), 42 U.S.C. § 416(h)(1); 20 C.F.R. §§ 404.344, 404.345. For surviving divorced spouse benefits, the agency considers the marriage under the state law of the number holder’s domicile state at the time of death. 20 C.F.R. § 404.336(a)(1). The agency considers state law in determining both the validity and finality of a divorce. See Program Operations Manual System (POMS) GN 00305.170(A)(1) (“A divorce is valid if it was granted by the court in whose jurisdiction at least one of the parties was domiciled at the time of the divorce.”), GN 00305.120(B) (“Apply State law to determine whether a divorce is final.”); see also POMS GN 00305.165, Summaries of State Laws on Divorce and Remarriage.

According to information you provided, the NH’s permanent home was in Florida at the time of his death. Under Florida law, the validity of a marriage is determined by the law of the state in which the marriage was contracted. See Smith v. Anderson, 821 So.2d 323, 325 (Fla. Dist. Ct. App. 2002). Here, we have no reason to question the validity of the Minnesota marriage. However, we must consider how Florida would view the Colorado divorce in order to determine the duration of marriage. Florida recognizes divorce judgments obtained in other states as required by the U.S. Constitution, which provides that a state must give full faith and credit to the judicial proceedings of another state. See U.S. Const. art. IV, § 1; see also Atwell v. Atwell, 730 So. 2d 858, 860 (Fla. Dist. Ct. App. 1999) (per curiam) (giving full faith and credit to a nunc pro tunc California divorce even though nunc pro tunc divorces are not permitted under Florida law). Thus, to determine the effective date of the dissolution, we must look to Colorado law.

Here, the terms of the dissolution decree appear consistent with Colorado law. [1] See POMS GN 00305.170(A)(1) (instructing to assume the validity of a divorce unless there is a basis to doubt its validity). Under Colorado law, courts are permitted to enter orders nunc pro tunc, “or now for then”; such orders “are normally for the purpose of correcting an omission from the court records and are deemed to have retroactive effect.” In re Estate of Becker, 32 P.3d 557, 559 (Colo. Ct. App. 2000) (citing Perdew v. Perdew, 64 P.2d 602 (Colo. 1936)), aff’d on other grounds sub nom. In re Estate of DeWitt, 54 P.3d 849 (Colo. 2002). Neither Colorado case law nor the Colorado Uniform Dissolution of Marriage Act, see 14 Colo. Rev. Stat. § 14-10-101 to 133, discuss when it is appropriate to dissolve marriages nunc pro tunc. [2] However, a review of Colorado case law shows that Colorado courts routinely enter dissolution decrees effective nunc pro tunc and this practice is accepted without comment by reviewing courts. See, e.g., In re Marriage of Leverett, 318 P.3d 31, 32 (Colo. Ct. App. 2012) (order nunc pro tunc to the date of the hearing); see also In re Marriage of Schelp, 228 P.3d 151, 154 (Colo. 2010); In re Marriage of Powell, 220 P.3d 952, 954 (Colo. Ct. App. 2009).

 

As the Colorado Court of Appeals has noted, “nunc pro tunc orders have been regularly enforced in Colorado.” In re Estate of Becker, 32 P.3d at 559 (citing In re Marriage of Rose, 574 P.2d 112 (Colo. Ct. App. 1977), where a nunc pro tunc decree of dissolution of marriage served to deprive the surviving wife of a surviving spouse share of a husband’s estate). [3] Because nunc pro tunc orders are “deemed to have retroactive effect,” May 24, 1982 is the effective date of the dissolution between Claimant and the NH under Colorado law.[4] In re Estate of B~, 32 P.3d at 559; see also In re Marriage of L~, 89 P.3d 455, 459 (Colo. Ct. App. 2009) (relying on Estate of Becker and recognizing that “the retroactive dates for the nunc pro tunc orders in [prior Colorado precedent] corresponded to dates on which events dispositive to the dissolution rights actually occurred in court”). Moreover, Claimant either agreed to the nunc pro tunc effective date of May 24, 1982, or at least had opportunity for advance notice of that date on the decree since her divorce attorney approved the document as to form before it was submitted to the court. She also personally signed a Stipulation and Agreement indicating that it served as written memorialization of the agreement approved by the court on May 24, 1982.

We recognize that the agency is not always required to honor state court orders. [5] In this case, however, because the nunc pro tunc order is consistent with Colorado state law, and presents no other basis for questioning its terms or validity, the agency may honor it. Accordingly, Claimant’s marriage to the NH does not meet the 10-year duration requirement for divorced wife benefits. [6]

CONCLUSION

Florida, the NH’s domicile state, would give full faith and credit to Colorado law in determining the effective date of a Colorado dissolution decree. Colorado law presumes that nunc pro tunc orders have retroactive effect. The effective date of Claimant’s divorce is, therefore, May 24, 1982. Thus, Claimant was not married to the NH for 10 years, as required by the Act for entitlement to divorced spouse benefits.

John Jay Lee
Regional Chief Counsel Region VIII
By: ____________

David Blower

Assistant Regional Counsel


Footnotes:

[1]

The terms of the decree appear consistent with the Colorado Uniform Dissolution of Marriage Act, which requires that the court find that (1) one of the parties was domiciled in the state for 91 days, (2) the marriage is irretrievably broken, and (3) at least 91 days had elapsed since it obtained jurisdiction over the respondent. See Colo. Rev. Stat. § 14-10-106(1)(a).

[2]

The courts do state that “[o]nly in cases where the cause is ripe for judgment may the power to enter a nunc pro tunc order be exercised, and then it must relate back to the time when the judgment could legally have been entered.” Feuquay v. Industrial Comm’n, 111 P.2d 901, 902 (Colo. 1941) (citing Perdew, 64 P.2d at 602).

[3]

Thus, the suggestion by Claimant’s representative that “[t]he Courts have not enforced a retroactive order to anyone’s detriment” is not supported by Colorado law.

[4]

As Claimant’s representative correctly notes, Colorado courts have held that nunc pro tunc orders do “not affect the parties’ procedural rights.” See Joslin Dry Goods Co. v. Villa Italia, Ltd., 539 P.2d 137 (Colo. Ct. App. 1975) (concluding that nunc pro tunc effect of order cannot reduce the time or defeat the right to seek review); In re Marriage of Gardella, 547 P.2d 928 (Colo. 1976) (holding that the time for appeal of a nunc pro tunc order begins from date that order actually entered). Here, however, the nunc pro tunc order does not affect Claimant’s procedural rights, but rather the substantive issue of the date she was legally considered divorced. The duration of marriage is an issue relevant to Claimant’s substantive rights, that is, whether she was entitled to survivor benefits. Thus, the cases cited by Claimant’s representative do not change the outcome.

[5]

Gray v. Richardson, 474 F.2d 1370, 1373 (6th Cir. 1973) (discussed by George v. Sullivan, 909 F.2d 857 (6th Cir. 1990)), sets forth a four part test for deciding when the agency should accept a state court order: “1) An issue in a claim for social security benefits previously has been determined by a State court of competent jurisdiction; 2) this issue was genuinely contested before the State court by parties with opposing interests; 3) the issue falls within the general category of domestic relations law; and 4) the resolution by the State trial court is consistent with the law enunciated by the highest court in the State.” See Social Security Ruling 83-37c (adopting rule of Gray v. Richardson). Here, it appears that all of the elements have been met. Even though the parties reached a settlement, the matter appears to have been “genuinely contested . . . by parties with opposing interests” at the outset of the divorce action.

[6]

Claimant’s attorney cites Albertson v. Apfel, 247 F.3d 448 (2d Cir. 2001), in support of her position that the marriage meets the 10-year requirement. Albertson is not on point. In Albertson, the plaintiff argued that she met the 10-year requirement because, although she was short three days, she should be credited three days for leap years. 247 F.3d at 449. The Second Circuit rejected her argument, holding that 10 years means 10 calendar years, regardless of whether they were leap years or non-leap years. Id. The case did not involve a nunc pro tunc divorce, and compared the effective date of her divorce with the date she was married. Id. If anything, Albertson stands for the proposition that the 10-year requirement will be strictly applied.


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PR 06205.011 - Florida - 09/18/2014
Batch run: 06/25/2015
Rev:09/18/2014